In QWI v the Great Gatsby Ltd [2017] NZERA Wellington 52 the Employment Relations Authority determined that a chef who, on the balance of probabilities had attempted to sell methamphetamine to her colleagues whilst at work, was unjustifiably dismissed. This is because in order for a dismissal to be lawful it must be substantively justified and procedurally fair. Employers will frequently have good reason to discipline an employee, but the correct process must be followed.
Before taking any action against an employee an employer must:
- Sufficiently investigate the allegations against the employee;
- Properly raise their concerns with the employee;
- Give the employee a reasonable opportunity to respond to the employer’s concerns; and
- Genuinely consider any response given.
The Disciplinary Process:
- Investigate the Allegations
An employer must act without delay when they become aware of an allegation of misconduct. The initial step is to begin an investigation into the allegations raised. The employer should inform the employee before the investigation begins that they will be investigating into an allegation of misconduct. Explain to the employee the details of the allegations, the seriousness of the allegations, and that they may have a representative present at all meetings. The employee should then be invited to an investigation meeting where they will be interviewed and explain what happened. The employer should interview any witnesses and ask them to provide statements. At the conclusion of the investigation an employer should decide whether it is appropriate to proceed to a disciplinary meeting.
- Disciplinary Meeting
If it is appropriate to proceed to a disciplinary meeting the employer should inform the employee in writing that they will be required to attend this meeting. An invitation to a disciplinary meeting letter should state the allegation, refer to relevant clauses in the employment agreement or company policies, state who will be involved in the decision making process, when the meeting will be, the possible consequences of the meeting if the allegation is established, and that the employee has the right to bring a representative. Any information gathered during the investigation that the employer will rely upon to make their decision should be attached to this letter. The employee should be given at least 48 hours’ notice of a disciplinary meeting to ensure the employee has enough time to prepare for the meeting.
In the disciplinary meeting set out the allegations and concerns and invite the employee to respond. If the employee’s explanation gives rise to a need to further investigate the meeting should be adjourned so this can take place. If you investigate further make sure you give any additional information to the employee to comment on.
- Decision
An employer should wait at least 24 hours from the time of the disciplinary meeting to communicating a preliminary decision. An employer should use this time to give the matter objective consideration. If it is concluded that the allegation has been made out the employer should inform the employee of their preliminary decision and give the employee a chance to comment on the proposed outcome. The employer should then adjourn this meeting to consider any further comments made by the employee for at least 2 hours before making a final decision.
The employer should then communicate the final decision to the employee and confirm this in writing. The employee should be informed that the outcome will remain on their personnel file. A warning letter should detail what conduct is prohibited and include what may happen if there are further instances of misconduct.
Where an allegation is one of misconduct the disciplinary outcome will usually be a warning. If the same type of misconduct happens again further warnings may be issued following a disciplinary process, until the employee is ultimately dismissed. Typically an employee will receive 3 warnings before dismissal but this is subject to what is in an employee’s employment agreement or in the employer’s policies.
Where an allegation is one of serious misconduct the outcome will usually be a final warning or dismissal. Serious misconduct undermines the trust and confidence an employer has in an employee and generally requires an employee intentionally performing an act knowing it was wrong. Misconduct does not require that same level of intent. If the employee is given a final warning and the same type of serious misconduct happens again, subject to what is the employee’s employment agreement or company policy, the employer may dismiss the employee.
Our Top Tips:
- An employer cannot dismiss someone without first going through a disciplinary process, no matter how serious the allegation.
- If an allegation is so serious that the employee cannot continue working, you should suspend the employee whilst you complete your investigation and go through a disciplinary process.
- Always follow any disciplinary process agreed to in employment agreement or policies.
- An employer cannot discipline an employee for being genuinely ill. If an employee is genuinely ill for extends periods of time this should be dealt with through a medical incapacity process.
- There is a difference between misconduct and poor performance. Misconduct should be dealt with through a disciplinary process and performance issues should be dealt with through a performance improvement plan.
- Always be fair and reasonable. Sometimes there may be an innocent explanation for suspicious circumstances.
This article is a brief guide on how to take disciplinary action against an employee. This should not be used as a substitute for legal advice. If you have any questions or need assistance with any employment issues, please contact Rachel Nightingale on 09 837 5734.
Email: rnightingale@corbanrevell.co.nz
Auckland Lawyers 